Fulmore et al v. United Parcel Service, Inc. et al

Filing 64

ORDER granting 50 Motion to Seal Document at 49 . Counsel is reminded to read the order in its entirety for further information. Signed by US Magistrate Judge James E. Gates on 11/30/2012. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

NICHELE FULMORE, H. RONALD
REVELS III, and RONALD C. JONES,
Plaintiffs,
v.
UNITED PARCEL SERVICE, INC. and
DOES 1-100,
Defendants.
_______________________________________
NICHELE FULMORE, H. RONALD
REVELS III, and RONALD C. JONES,
Plaintiffs,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

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7:11-CV-18-F

7:11-CV-91-F

ORDER
This case comes before the court on a motion (D.E. 50) filed by plaintiff Ronald C. Jones
(“plaintiff”) to seal exhibits (D.E. 49) to his memorandum in opposition to a motion for summary
judgment filed by defendant United Parcel Service (“defendant”). The exhibits consist of plaintiff’s
medical records and other documents relating to his medical condition. The motion is unopposed.
For the reasons set forth below, the court will allow the motion.

DISCUSSION
The Fourth Circuit has directed that before sealing publicly filed documents the court must
first determine if the source of the public’s right to access the documents is derived from the
common law or the First Amendment. Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988).
The common law presumption in favor of access attaches to all judicial records and documents,
whereas First Amendment protection is extended to only certain judicial records and documents, for
example, those filed in connection with a summary judgment motion. Id. Here, as noted, the
documents sought to be sealed have been filed in connection with or relate to a motion that seeks
dispositive relief, and therefore the right of access at issue arises under the First Amendment. See
Rushford v. New Yorker Magazine, 846 F.2d 249, 252-53 (4th Cir. 1988).
While the presumption of access under the common law is not absolute and its scope is a
matter left to the discretion of the district court, “[w]hen the First Amendment provides a right of
access, a district court may restrict access ‘only on the basis of a compelling governmental interest,
and only if the denial is narrowly tailored to serve that interest.’” Virginia Dep’t of State Police v.
Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). The burden of establishing the showing
necessary to overcome a First Amendment right of access falls upon the party seeking to keep the
information sealed. Id. Specific reasons must be presented to justify restricting access to the
information. Id. (citing Press-Enterprise Co. v. Superior Court, 478 U.S.1, 15 (1986) (“The First
Amendment right of access cannot be overcome by [a] conclusory assertion”)).
Here, plaintiff has demonstrated that the documents in question contain personal and
confidential information, including information relating to his medical records and medical
condition, information which is of utmost importance to him but not generally available to the public
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or bearing importance to any public matters. Based on this showing, the court finds that the
presumption of access has been overcome. Wolfe v. Green, No. 2:08-1023, 2010 WL 5175165, at
IN THE UNITED STATES DISTRICT COURT

*2 (S.D. W. Va. 15 Dec. 2010) (holding that First Amendment CAROLINA
overridden with
FOR THE EASTERN DISTRICT OF NORTH right of access
WESTERN DIVISION

respect to proposed redactions that included personal financial information).
5:11-MJ-01359-JG-l

In addition, the public must be given notice of a request to seal and a reasonable opportunity

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to challenge it. Knight Publishing Co., 743 F.2d at 235. Here, the motion was filed on 18 July 2012.
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v.
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No opposition to the motion has been filed by any party ORDER DENYING APPOINTMENT
UNITED STATES OF AMERICA,

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to do so.

OF COUNSEL
(SEALED)

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Finally, the court is obligated to consider less drastic alternatives to sealing, and where a
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Defendant.

CHRISTOPHER YORK MAKEPEACE,

court decides to seal documents, it must “state the reasons for its decision to seal supported by
This case comes before the court on the issue ofappointment ofcounsel for Christopher York

specific findings and the reasons for rejecting alternatives to sealing in order to provide an adequate
Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such

record for review.” Id. Here, the court finds that the documents in question contain confidential
appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section

medical information not generally available to the public, and that alternatives to sealing them do
of the form and has failed to enter the date on which he executed the form. Without a complete

not exist at the present time.
application, the court is not able to determine whether defendant is entitled to appointment of

CONCLUSION
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

For the foregoing reasons, IT IS ORDERED that plaintiff’s motion to seal (D.E. 50) is
such appointment after the filing of a new Financial Affidavit which contains the missing

ALLOWED. The Clerk shall retain the filing at Docket Entry 49 under permanent seal in
information.

accordance with Local Civil Rule 79.2, E.D.N.C.
This order shall be filed under seal.

SO ORDERED, this 30th day November 2012.
SO ORDERED, this 23rd day of May 2011.

___________________________
James E. Gates
United States Magistrate Judge

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